See also Fosspatents.com, here and Juve.de, here (German).
My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents. The questions essentially
revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has
been seeking an injunction. The concept at issue can obviously have even dramatically
different shades and meanings. In fact, it can range from a mere “(oral)
declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into
negotiations” to “a binding offer to the SEP
owner on terms that the SEP owner cannot refuse without treating the infringer
unfairly or discriminatorily”, furthermore requiring that “the infringer, in
anticipation of the license he is seeking, already complies with his contractual
obligations with respect to past acts of infringement.”
"In industries marked by rapid technological change, the exclusion of entrants has a far greater impact on the development of the industry. In these industries, exclusion, not price-fixing, is the “supreme evil” that antitrust should address.", p. 1212.
Kirtsaeng v. John Wiley & Sons, Inc., No. 11–697, here.
"Putting section numbers to the side, we ask whether
the “first sale” doctrine applies to protect a buyer or other
lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy
into the United States (and sell it or give it away) without
obtaining permission to do so from the copyright owner?
Can, for example, someone who purchases, say at a used
bookstore, a book printed abroad subsequently resell it
without the copyright owner’s permission?", p. 6.
"In our view, the answers to these questions are, yes. We
hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad."
Some competition scholar's highlights:
"The “first sale” doctrine is a common-law doctrine with
an impeccable historic pedigree", p. 18.
"American law too has generally thought that competition, including freedom …
Some general points:
- Because the dissemination of content is so
pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.
- central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age
- apply fresh eyes to the next great copyright act to ensure that
the copyright law remains relevant and functional
- keeping the public
interest at the forefront, including how to define the public interest and who may speak for it
- possible and necessary to have a copyright law that combinessafeguards for free
expression, guarantees of due process, mechanisms for access, and respect for intellectual
- authors are intertwined with the interests of the public. As the first beneficiaries of the copyright
law, they are not a counterweight to the public interest but instead are at the very center of the
UK IPO, Evaluating the impact of parody on the exploitation of copyright works, here; The Treatment of Parodies Under Copyright Law in Seven Jurisdictions, here; Copyright and the Economic Effects of Parody, here.